Frazier Glenn Cross, Jr., also known as F. Glenn Miller, appears at his arraignment on capital murder and first-degree murder charges in New Century, Kansas April 15. Cross is accused of the killing of three people at two Jewish facilities near Kansas City over the weekend. At right is Michelle Durrett, attorney with the public defender's office.

County prosecutors Tuesday charged the white supremacist suspected of killing three people outside two Kansas City-area Jewish community facilities Sunday with two counts of murder. However, despite a lengthy history of publicly espousing anti-Semitic views, F. Glenn Miller has not yet been charged with a federal hate crime, although federal prosecutors say those charges are pending.

“We are in a very good place from an evidence standpoint of moving forward with this case, and it will be presented to the grand jury in the not too distant future,” said Barry Grissom, US attorney for the District of Kansas. “Before I make any decision, I want all the facts.”

The reason for the delay, legal experts say, is that proving hate crimes requires a careful examination of what Mr. Miller may have said that day, before and immediately after his arrest. Complicating matters is that, despite his history of directing hate speech against Jews, the three people he killed were Christian — one a Catholic, and two others Methodist — which may help his defense in arguing he was not driven by hate.

“Because a hate crime is an intentional crime, prosecutors have to show he definitely committed a criminal act with intentional hate,” says Donald Tibbs, a law professor at Drexel University in Philadelphia who specializes in civil rights and criminal procedure. “The better piece of evidence is the one before or during or after the crime.”

Johnson County prosecutors charged Miller with one count of capital murder in the killings of a man and his grandson while they sat in their car at a Jewish community center in Overland Park, Kan. Miller also was charged with first-degree murder in the killing of a woman shot in the parking lot of an assisted living facility for Jewish seniors.

The capital murder charge allows prosecutors to seek the death penalty and involves a life sentence without parole. The second charge also carries a life sentence with no parole possible for at least 25 years.

Miller is a long-time leader of the Ku Klux Klan whose activity in the organization dates back to the 1980s; through a website, public speeches, an autobiography, campaigns for political office, and even media appearances, he regularly expressed hatred toward blacks and Jews. In 1987, he served three years in federal prison for a weapons charge and mailing a threat through the mail.

For a hate-crime conviction to stick, prosecutors will need to show that Miller’s beliefs drove his motivation to allegedly lash out with violence at locations presumably populated by Jews.

“The defense will probably argue that, while [his background] may be anti-Semitic, it does not necessarily rise to be hate. What would be more effective [for prosecutors] is if he said ‘I hate all of you people because you are Jewish, ” Prof. Tibbs says.

Miller reportedly shouted “Heil Hitler” after being arrested – likely a critical piece of evidence in a trial. That uttered phrase "will help prosecutors connect his anti-Semitic views from the past with the current acts of the present, and will help [prosecutors] use his writings to show his state of mind leading up” to the violence, says Tibbs.

Federal prosecutors are also likely questioning the arresting officers to learn if Miller waived his Miranda rights by confessing while in the police cruiser, or, even if read his rights, made incriminatory statements before consulting with an attorney. The US Supreme Court decision Rhode Island v. Innis from 1980 forbids police from entering into any kind of conversation with a defendant if he asserts his right to legal protection.

“If there is a Miranda issue, statements he made to the police can be thrown out and then they can’t show his intent and motive to commit a hate crime,” says Tibbs. “That will have a huge impact whether he is charged [with a hate crime.] I think that’s why the government is being hesitant.… Before they can charge him, they have to investigate the words he used and whether or not they can be excluded under Miranda.”